Expecting hierarchy
What Uncle Sam gets wrong about Pepperdine and its religious affiliation
The federal government has a hard time understanding Pepperdine and its relationship with Churches of Christ. The university and its religious affiliation don’t fit neatly into the conceptual categories of the bureaucracy tasked with regulating them. The main problem seems to be that the government expects Pepperdine and Churches of Christ to be hierarchical when in fact they are flat.
Many religious schools fit neatly into hierarchies. Sewanee is owned and operated by the Episcopal Church and Brigham Young University by the LDS church. But Pepperdine does not belong to Churches of Christ in the same sense—it is governed by an independent and self-perpetuating board. The church cannot appoint board members and does not fund the university. In fact, there isn’t really even a church that could do those things at Pepperdine because Churches of Christ don’t have a denominational structure like the Episcopal Church.
Churches of Christ are what you might call flat. Individual congregations are governed locally by their own members, but there’s no regional or national or international hierarchy overseeing them: no pope, no council of bishops, no convention, just local congregations bound by a common origin in the Stone–Campbell Restoration Movement and a family resemblance with respect to beliefs and practices. So while there are many individual churches, there is no unified church that could own and operate Pepperdine.
And just as the relationship between individual Churches of Christ is flat—a matter of family resemblance rather than membership in a hierarchy—so too is Pepperdine’s relationship with the church. Pepperdine does not control and is not controlled organizationally by Churches of Christ, but it claims a common origin and shares many beliefs and practices.
Being flat sometimes causes problems when Pepperdine has to interact with a regulatory system that is designed for schools with more classically denominational (hierarchical) affiliations. The government is a hierarchy, and it expects to deal with hierarchies. Pepperdine and its flat religious affiliation don’t match the expectations of the regulatory apparatus. So Uncle Sam sometimes plays Procrustes, stretching Pepperdine or lopping off limbs willy-nilly to make the university fit the arbitrary standard established to deal with more hierarchical organizational structures.
One place in Pepperdine’s history where we can see the government’s misunderstanding is a case involving Title IX, the 1972 law forbidding sex-discrimination at universities that receive federal funds. In 1976, Pepperdine president William S. Banowsky sent a letter to the US Department of Education’s Office of Civil Rights, requesting exemptions from certain requirements imposed by Title IX which, in Pepperdine’s opinion, contravened the university’s right to exercise freely its sincerely-held religion.1
Following a nine-year delay during which the office worked through its backlog of requests, Pepperdine finally received confirmation of its exemption in 1985. In its letter to president David Davenport, the Office of Civil Rights (OCR) officially exempted Pepperdine from a handful of Title IX requirements, explaining that, if anyone were to bring a civil rights suit against Pepperdine alleging a violation of one of these requirements, Pepperdine’s claim that the requirement(s) in question conflicted with its religious beliefs would be subject to an investigation: “in the unlikely event that a complainant alleges that the practices followed by the institution are not based on the religious tenets of the controlling organization, OCR is obligated to contact the controlling organization to verify those tenets.”
This sentence betrays the government’s total failure to understand the context of Pepperdine’s relationship with Churches of Christ. After all, while Pepperdine is very much affiliated with the church, there simply is no “controlling organization” that could speak authoritatively on behalf of all Churches of Christ as to whether Pepperdine’s practices are aligned with church teaching. You can call a phone number and ask the Baptist General Convention of Texas whether Baylor University’s actions are consistent with church teaching, but there is no phone number for Churches of Christ you could call with a question about Pepperdine.
This is not to say that Pepperdine isn’t controlled to a large extent by Churches of Christ. The university’s bylaws require that the president, the chair of the governing Board of Regents, and a majority of both the board and the board’s executive committee be members in good standing of a congregation of the church. But the university’s connection with the church largely consists of these governing individuals and their own relationship to the church. Former provost Steven Lemley summarizes the situation: “we are related to that church in a stable and permanent way through the church relationship of the people who govern and lead the university.”2
Nor, of course, is Pepperdine the only school affiliated with Churches of Christ whose affiliation has been misunderstood by the government bureaucracy trying to regulate it. Schools like Lipscomb University in Tennessee and Harding University in Arkansas have also requested and received exemptions that feature the same boilerplate language about contacting “the controlling organization,” though they too answer to no denominational body.3 The system expects schools and churches to fit a particular mold, making little effort to understand differences.4
In fairness to the regulatory apparatus, it has done a good job of respecting religious freedom in the case of Title IX, even when the institutions being regulated don’t fit neatly into the conceptual categories of the law. In other words, I think the Dept. of Education reaches the right conclusion in granting exemptions to schools like Pepperdine, even if it doesn’t always understand them.
Broad deference to sincere religious differences is a good policy—within reason, of course—and my tone here would be very different if the government’s failure to understand Pepperdine’s situation had resulted in an abridgement of the university’s First Amendment rights. Still, I think the government would be better equipped to deal with schools like Pepperdine if the law better understood the diversity of ecclesiastical structures in the United States.
Epilogue
In 2016, Pepperdine president Andrew Benton sent another letter to the Office of Civil Rights, this time withdrawing the university’s request for a Title IX exemption. Benton specified that the university had never asserted any of the exemptions it had been granted and that, although the university maintained its connection to Churches of Christ, it was at that time prepared to comply with all the requirements of that law. OCR granted Pepperdine’s request later that year.5
The requirements in question mostly pertained to the university’s discomfort with women preaching.
S. Lemley, “PU & CofC,” 1998, Folder 4, Box 26, W. David Baird papers, Pepperdine University Special Collections and University Archives.
A more recent letter from OCR to Faulkner University in Alabama, however, makes no mention of contacting the “controlling organization.” This may be due in part to the government’s improved understanding of schools affiliated with religious groups that lack a hierarchical structure following a 2020 case (Maxon v. Fuller Theological Seminary), in which the Ninth Circuit ruled that the controlling religious organization can be identical with the educational institution. In other words, Pepperdine can be regulated like an educational institution controlled by a religious organization inasmuch as its Board of Regents is a religious organization. However, the Ninth Circuit’s ruling seems motivated at least in part by Chevron deference to the Dept. of Education’s longstanding construction of the statute. The Supreme Court’s 2024 overruling of the precedent in Chevron seems to have muddied the legal waters in this area.
This Title IX anecdote is only one of several ways in which Pepperdine and its sister schools have been misunderstood by the federal bureaucracy in significant ways. I don’t have the time now to get into a similar case regarding a tax deduction available to clergy, the law concerning which was written expecting that it would be applied to a particular ecclesiastical structure, with surprising results in the case of schools affiliated with Churches of Christ.
Note, however, that schools are not required to seek OCR’s assurance of an exemption in order to assert an exemption during any future investigations regarding alleged noncompliance with the requirements of Title IX (see 34 C.F.R. § 106.12(b)). So it’s possible for Pepperdine to assert an exemption at any time, as long as the university can make the case that the requirement in question really does conflict with one of its religious tenets.